Struan Gordon Robertson v James and Alexandra Pace
[2024] UKUT 123 (LC)
Fosse Urban Projects Limited v Robert Whyte & Ors
8 December 2023
[2023] UKUT 286 (LC)
Upper Tribunal
Someone built a house breaking a rule that said the land could only be a garden. They tried to get the rule changed after building. The judge said the rule was outdated but refused to change it because the builder broke the rule on purpose, which was unfair to the neighbours.
Key Facts
- •Fosse Urban Projects Ltd. applied to discharge a restrictive covenant preventing the use of land (9 Buttercup Drive, Wymondham) for anything other than garden land.
- •A new house was built on the land in breach of the covenant.
- •Objectors: Robert and Jane O'Raw and Helen Bell, neighbours whose properties benefit from the covenant.
- •The applicant argued the covenant was obsolete due to neighbourhood changes and that its continued existence impeded reasonable land use.
- •The objectors argued the covenant provided substantial benefits (preserving open space and privacy).
- •The Tribunal inspected the property and considered expert evidence (Ms. Arundel's report) and objector testimony.
Legal Principles
Section 84(1) of the Law of Property Act 1925 allows the Tribunal to discharge or modify restrictive covenants under certain conditions (grounds a, aa, and c).
Law of Property Act 1925, Section 84(1)
Ground (a): A restriction is obsolete if changes in the character of the property or neighbourhood render it no longer achievable.
Law of Property Act 1925, Section 84(1)(a)
Ground (aa): A restriction impeding reasonable land use may be discharged if it secures no practical benefits of substantial value or advantage, or is contrary to public interest.
Law of Property Act 1925, Section 84(1)(aa), (1A), (1B)
Ground (c): A restriction may be discharged if it will not injure the persons entitled to its benefit.
Law of Property Act 1925, Section 84(1)(c)
In considering obsolescence, the Tribunal must consider the covenant's original purpose and whether it can still be achieved.
Truman, Hanbury, Buxton & Co’s Application [1956] 1 QB 261; Hancock v Scott [2019] UKUT 16 (LC)
The Tribunal considers the 'substantial' value of benefits in light of all circumstances, including changes in the neighbourhood.
Shephard v Turner [2006] 2 P & CR 28; Re Pearce’s Application [2017] UKUT 0039 (LC)
Tribunals should use common sense when drawing inferences from the absence of evidence.
Royal Mail Group Ltd v Efobi [2021] UKSC 33
Deliberately breaching a covenant before applying for discharge may lead the Tribunal to refuse the application.
Millgate Developments Ltd and another v Alexander Devine Children’s Cancer Trust [2020] 1 WLR 4783 (SC); Re The Trustees of Green Masjid and Madrasah [2013] UKUT 0355 (LC)
Outcomes
Application refused.
While the covenant was deemed obsolete (ground (a)) and the new house's use was reasonable, the Tribunal found that the applicant's 'build first, apply later' approach, coupled with a failure to provide evidence justifying its actions, constituted cynical conduct. The Tribunal did not find the practical benefits of the covenant to be of substantial value, but refused to discharge it due to the applicant's behaviour.